Plaintiffs assert that reargument is warranted because this
Court failed to follow the "recent holding of Chan v. Korean
Air Lines, ___ U.S. ___, 109 S.Ct. 1676, 104 L.Ed.2d 113
(1989), that the plain meaning of the convention's language
must be followed, unless there is an ambiguity." Plaintiffs
concede that if there is an ambiguity, then the Court may look
to the drafting history or other evidence of the shared
expectations of the parties.

Plaintiffs further argue that this Court has misconstrued
the primary shared expectation of the contracting parties;
according to plaintiffs, the parties only intended to set some
uniform limit on an airline carrier's liability if the damage
was not caused by wilful misconduct and if the damage was
caused by wilful misconduct then there was to be no uniform
limit.

This Court's disagreement with plaintiffs appears to be not
in the interpretation of Chan but in its applicability to the
case at bar. This Court agrees with plaintiffs that the Supreme
Court in Chan held that "the plain meaning of the convention's
language must be followed" and "where the text [of the Warsaw
Convention] is clear, . . . the courts have no power to insert
an amendment." Chan v. Korean Air Lines, ___ U.S. ___, 109
S.Ct. 1676 (1989) However, nowhere does the Convention text
clearly provide a cause of action for punitive damages and that
is what plaintiffs' argument requires. Unlike the plaintiffs in
Floyd who asserted their punitive damage claims under State law
and then simply asked that the Warsaw Convention not preclude
their claims, plaintiffs here have argued that the Warsaw
Convention actually authorizes punitive damage claims.*fn1
Therefore, it seems to this Court that if the text is, as
plaintiffs maintain, without ambiguity, and the plain meaning
must be followed without reference to the shared expectation of
the parties, then the only possible reading is that the
Convention does not create a cause of action for punitive
damages and plaintiffs claims must be dismissed unless they
assert State causes of action and establish a basis for
diversity or ancillary jurisdiction. This conclusion is
supported by the Second Circuit's hesitancy to hold that the
text of the Warsaw Convention even provides a cause of action
for compensatory damages. For many years the Second Circuit
held that Article 17 did not create a cause of action for
damages. See Komlos v. Compagnie Nationale Air France,
209 F.2d 436 (2d Cir. 1953); Noel v. Linea Aeropostal Venezolana,
247 F.2d 677 (2nd Cir. 1957).*fn2 When the Second Circuit, in
Benjamins v. British European Airways, 572 F.2d 913 (2d Cir.
1978), reversed these earlier rulings and recognized that
Article 17 did provide a cause of action, it relied on the
intent of the treaty signatories. Benjamins v. British European
Airways, 572 F.2d 913 (2d Cir. 1978) (the Court relied on the
minutes and documents of meetings in 1925 and 1929, other
Articles of the Convention, and the ways other signatories
interpreted the Convention's provisions in order to decipher
what concerned the delegates). It seems that even the language
of Article 17 is somewhat ambiguous and the ambiguity
may only be resolved by resorting to the intent of the parties
as evidenced by materials outside the Convention's text.

Similarly, this Court ultimately found that no provision of
the treaty clearly created a cause of action for punitive
damage claims and hence, turned to the shared expectations of
the parties for guidance. However, prior to finding the treaty
to be ambiguous in this respect, we examined the language of
the text.

In this Court's prior Memorandum and Order, this Court
analyzed the "natural meaning" of those passages that
plaintiffs asserted authorized punitive damage claims whether
or not wilful misconduct existed. While plaintiffs argued that
this Court should read the "however founded" language of
Article 24, ¶ 1 in combination with the "without prejudice to
the questions as to who are the persons who have the right to
bring suit and what are their respective rights" of Article 24,
¶ 2 without reference to the other language in those
paragraphs, this Court found that the natural meaning of that
language could only be determined by examining it in the
context of the entire paragraphs and that as a result the
natural meaning of the paragraphs indicated punitive damages
were certainly not authorized in cases where no wilful
misconduct existed as plaintiffs have asserted. Memorandum and
Order, 8-9.

Similarly, this Court examined the natural meaning of the
language found in Article 25: "the carrier shall not be
entitled to avail himself of the provisions of this convention
which exclude or limit his liability if the damage is caused
by wilful misconduct" and found it to be ambiguous. "Taken
alone, the language of Article 25 may be interpreted to mean
that one engaged in wilful misconduct would not benefit from
either the specific monetary limit set by the Warsaw
Convention or the general plan to limit liability to
compensatory languages." Memorandum and Order, 10. Further,
this Court indicated that even without any reference to the
intent of the parties, the natural meaning of the language was
more consistent with the former of the two possibilities;
otherwise "Article 25 would have provided that the entire
Warsaw Convention, rather than just certain provisions, was
inapplicable in cases [of wilful misconduct]." Memorandum and
Order, p. 10.

Having determined that neither Article 24 nor 25 provided a
cause of action for punitive damages, this Court then
determined that the natural meaning of Article 17 also did not
allow for punitive damage claims since punitive damage claims
were not "damage sustained" and moreover, if Article 17 was
meant to provide a cause of action for punitive damage claims
the same would have been worded as actions for damages rather
than damage sustained.*fn3

In conclusion, it seems to this Court that we have not
failed to consider the Chan holding but rather simply disagree
with its applicability to the case at bar since we found that
the treaty does not clearly provide any cause of action for
punitive damage actions. Therefore, plaintiff's first ground
for reargument fails.

As for plaintiffs argument that this Court has misconstrued
the primary intent of the parties, it is possible that
plaintiffs construction of the parties intent is correct and
we are wrong but we do not think so. This also appears to be
an issue for appeal rather than reargument.

With respect to plaintiffs' argument that we improperly
relied on Floyd which did not apply Chan, we feel as discussed
above that we did apply Chan and that while we relied on
aspects of the Floyd decision for guidance on the parties'
intent, this seems quite appropriate since Floyd is the only
Circuit decision which has addressed issues involving punitive
damages and the Warsaw Convention.

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.